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Supreme Court 20 August 2020

R v McCloskey (No 5)

[2020] NSWSC 1087

HomicidePublic order & justice offences
CRIME SENTENCE ACCESSORY AFTER THE FACT TO MURDER POOR PROSPECTS OF REHABILITATION CONCERNS FOR REOFFENDING VICTIM IMPACT STATEMENTS

Citation: R v McCloskey (No 5) [2020] NSWSC 1087
Court: Supreme Court of New South Wales
Date: 20 August 2020
Judge: Davies J

Background

The offender, the president of a motorcycle club's Sydney chapter, was originally charged with the murder of a man shot dead at his home near Batemans Bay in June 2013. At a judge-alone trial, Davies J acquitted the offender of murder but found him guilty of being an accessory after the fact. The conviction arose specifically from his driving the three men who carried out the killing away from the scene and back to where they were staying.

The offender had arranged to attend the deceased's home as part of a plan to confront him over an alleged security breach involving rival club members. The court found that the purpose of attending was to assault the deceased, not to kill him, and that the offender was unaware the other men were armed. When gunshots were fired and the men returned to the car, the offender drove them from the scene knowing a killing had just occurred.

At the time of sentencing, the offender was already serving a separate custodial sentence imposed by the District Court. The sentencing proceedings therefore required the court to consider the interaction between the two sentences, the appropriate discount for both the guilty plea and the offender's substantial assistance to police, and whether the deceased's relatives could make victim impact statements in respect of the accessory offence.

  • What was the objective seriousness of the offence of being an accessory after the fact to murder in these circumstances?
  • What discount was warranted for the guilty plea and for assistance provided to police?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
  • Whether relatives of the deceased were "victims" for the purposes of making victim impact statements in relation to an accessory after the fact offence.
  • How the principle of totality applied when the offender was already serving a separate sentence.

Decision

Objective seriousness: Davies J assessed the offence as below the mid-range of objective seriousness. The acts constituting the offence were limited in duration and confined to driving the killers from the scene. The court accepted that even brief assistance enabling an offender to flee is serious, but noted that unlike some comparable cases, the offender himself later identified the men involved, including the killer, in a voluntary statement to police. The killing was also sudden and unexpected from the offender's perspective, and the court found that, given the killers were still armed, the offender may himself have faced a threat had he refused to drive.

Victim impact statements: The court ruled that relatives of the deceased could not make victim impact statements in relation to the accessory offence. Under the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW), only persons who are "victims" of the offence being sentenced may do so. Because the accessory offence did not directly harm the deceased's family, those relatives did not qualify as victims for that purpose. The court noted that this conclusion, while producing a result that may seem harsh to those grieving, was compelled by the statutory framework.

Discount and sentence: A combined discount of 40 per cent was applied for both the guilty plea and the offender's assistance to police in relation to a number of crimes. Without that discount, the court indicated the sentence would have been two years and six months. After the discount, the sentence was set at one year and six months' imprisonment. Applying the principle of totality, the court ordered the sentence to commence eight months before the expiry of the non-parole period of the sentence already being served, with credit also given for time served on remand.

Special circumstances: Davies J declined to find special circumstances, despite acknowledging some evidence that the offender's life was moving in a more pro-social direction and that he may need support upon release. Any reduction in the non-parole period on that basis would, in the court's view, reduce it below a level appropriate to the seriousness of the offending.

Orders Made

  • The offender was convicted of being an accessory after the fact to the murder of the deceased.
  • Sentenced to imprisonment with a non-parole period of 13 months, commencing 13 April 2021 and expiring 12 May 2022.
  • Balance of term of five months, expiring 12 October 2022.
  • Earliest date of eligibility for parole: 12 May 2022.

Key Takeaways

  • Driving killers away from a crime scene constitutes the actus reus of accessory after the fact to murder, even where the assistance was brief and the offender did not anticipate the killing beforehand.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), relatives of a homicide victim are not "victims" of an accessory after the fact offence and therefore have no standing to make victim impact statements at the accessory's sentencing.
  • Objective seriousness for accessory after the fact offences is assessed by reference to factors including the extent of the accessory's knowledge, the nature and duration of the assistance, and whether the principal was ultimately brought to justice.
  • A combined discount for both a guilty plea and substantial police assistance can be significant: here the court applied a 40 per cent reduction, reducing a notional head sentence of two and a half years to eighteen months.
  • Where an offender is already serving a custodial sentence, the principle of totality requires the sentencing court to structure the new sentence so that the combined effect is not disproportionate, including by adjusting the commencement date of the new sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23, 27, 30E
- Evidence Act 1995 (NSW), s 4

Cases:
- R v McCloskey (No 3) [2020] NSWSC 914
- TT v R [2014] NSWCCA 206
- R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408
- R v Mirad [2004] NSWSC 701
- Rios v R [2012] NSWCCA 8
- Sheather v R [2020] NSWCCA 162
- R v Burns, Renae [2013] NSWSC 1851
- R v Cowen [2008] NSWSC 104
- R v Hawken (1986) 27 A Crim R 32
- R v Urriola [2010] NSWSC 367
- Regina v Scowen [2007] NSWSC 792